Citation Nr: 0932990
Decision Date: 09/02/09 Archive Date: 09/14/09
DOCKET NO. 08-09 891A ) DATE
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)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for an acquired
psychiatric disability, to include posttraumatic stress
disorder (PTSD).
2. Propriety of the reduction of the disability ratings for
the Veteran's service connected bilateral knee disability
from 20 percent to 10 percent.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
E. D. Anderson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1978 to January
1999.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from April 2006, January 2007, and July 2007 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in St. Petersburg, Florida.
A hearing was held before the undersigned Veterans' Law Judge
in May 2009 and a transcript of that hearing is of record.
At that hearing, the Veteran submitted additional evidence,
but waived RO review in a signed writing.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The Veteran is seeking entitlement to service connection for
an acquired psychiatric disability to include PTSD. He is
also appealing the reduction in the disability ratings
assigned to his service connected left and right knee
disabilities from 20 percent to 10 percent.
Acquired Psychiatric Disability
There is no evidence in the Veteran's service treatment
records that he was ever treated for a psychiatric disorder
during his active service. However, the Veteran has a
current diagnosis of depression with psychotic features and
VA treatment notes attribute at least some of the Veteran's
current psychological distress to alleged traumatic memories
of stressful events during the Veteran's military service.
In determining whether the duty to assist requires that a VA
medical examination be provided or medical opinion obtained
with respect to a veteran's claim for benefits, there are
four factors for consideration. These four factors are: (1)
whether there is competent evidence of a current disability
or persistent or recurrent symptoms of a disability; (2)
whether there is evidence establishing that an event, injury,
or disease occurred in service, or evidence establishing
certain diseases manifesting during an applicable presumption
period; (3) whether there is an indication that the
disability or symptoms may be associated with the veteran's
service or with another service-connected disability; and (4)
whether there otherwise is sufficient competent medical
evidence of record to make a decision on the claim. 38
U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).
With respect to the third factor above, the Court has stated
that this element establishes a low threshold and requires
only that the evidence "indicates" that there "may" be a
nexus between the current disability or symptoms and the
veteran's service. The types of evidence that "indicate"
that a current disability "may be associated" with military
service include, but are not limited to, medical evidence
that suggests a nexus but is too equivocal or lacking in
specificity to support a decision on the merits, or credible
evidence of continuity of symptomatology such as pain or
other symptoms capable of lay observation. McLendon v.
Nicholson, 20 Vet. App. 79 (2006).
The Board finds that there is sufficient indication of a
connection between the Veteran's active service and his
current acquired psychiatric disability to warrant referral
for a VA examination. The examiner is asked to render an
opinion as to whether it is at least as likely as not (fifty
percent or greater) that the Veteran's current acquired
psychiatric disability had onset in service or was caused or
aggravated by the Veteran's active military service.
Additionally, the Veteran has reported that during his active
service some of the recruits he was training filed complaints
alleging that the Veteran had behaved inappropriately. It
appears that these allegations were investigated by the
military.
On remand, the RO is instructed to obtain the Veteran's
personnel records to determine if some of the incidents the
Veteran has described can be corroborated and if anything in
the Veteran's personnel records supports the Veteran's
assertions that he was under extreme stress at this time.
Bilateral Knee Disability
In a July 2007 rating decision, the RO reduced the disability
ratings for the Veteran's left and right knee disabilities
from 20 percent disabling to 10 percent disabling. The Board
notes that in a September 2006 VA examination report, the
examiner reported that the Veteran had range of motion in his
left and right knees "from 70 degrees of extension to 90
degrees of extension."
It is unclear whether this statement means that the Veteran's
range of motion is limited to a range of only 20 degrees or
that the Veteran is able to hyper-extend his legs or whether
the examiner made an error in reporting his measurements.
However, if the Veteran's range of motion really is limited
to only 20 degrees, a reduction in his disability rating for
either knee would not be appropriate. Thus, the Veteran must
be afforded another VA examination of his left and right knee
disabilities to accurately determine the nature and extent of
his current disability.
Accordingly, the case is REMANDED for the following action:
1. The RO should make all reasonable
efforts to obtain the Veteran's service
personnel records. If these records do
not exist, the RO should make a formal
finding of such.
2. The RO should schedule the Veteran for
a VA examination of his acquired
psychiatric disability. The examiner
should note any functional impairment
caused by the Veteran's disability,
including a full description of the
effects of his disability upon his
ordinary activities, if any.
The Veteran's claim folder and a copy of
this REMAND should be furnished to the
examiner, who should indicate in the
examination report that he or she has
reviewed the claims file. All findings
should be described in detail and all
necessary diagnostic testing performed.
The examiner should render an opinion as
to whether it is at least as likely as not
(fifty percent or greater) that the
Veteran's acquired psychiatric disability
had onset in service or was caused or
aggravated by his active service,
including secondary to an already service
connected disability.
3. The RO should schedule the Veteran for
a VA examination of his bilateral knee
disability. The examiner should note any
functional impairment caused by the
Veteran's disability, including a full
description of the effects of his
disability upon his ordinary activities,
if any.
The Veteran's claim folder and a copy of
this REMAND should be furnished to the
examiner, who should indicate in the
examination report that he or she has
reviewed the claims file. All findings
should be described in detail and all
necessary diagnostic testing performed.
4. When the development requested has
been completed, and the RO has ensured
compliance with the requested action, this
case should again be reviewed by the RO on
the basis of the additional evidence. If
the benefit sought is not granted, the
Veteran and his representative should be
furnished a Supplemental Statement of the
Case, and be afforded a reasonable
opportunity to respond before the record
is returned to the Board for further
review.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).